Aussie band loses appeal on 'Down Under' ruling

By KRISTEN GELINEAU | October 7, 2011 | 2:50 AM EDT

FILE - Members of "Men at Work" pose with their Grammy for best new artist at the awards show in Los Angeles in this Feb. 22, 1983 file photo. From left: Greg Hamm, Ron Strykert, Colin Hay, Jerry Speiser and John Rees. Australian rockers Men at Work on Friday Oct. 7, 2011 lost their final court bid to prove they did not steal the distinctive flute riff of their 1980s hit "Down Under" from a children's campfire song. (AP Photo, File)

SYDNEY (AP) — Australian rockers Men at Work on Friday lost their final court bid to prove they did not steal the distinctive flute riff of their 1980s hit "Down Under" from a children's campfire song.

The High Court of Australia denied the band's bid to appeal a federal court judge's earlier ruling that the group had copied the signature flute melody of "Down Under" from the song "Kookaburra Sits in the Old Gum Tree."

"Kookaburra," a song about Australia's famous bird of the same name, was written more than 70 years ago by Australian teacher Marion Sinclair for a Girl Guides competition. The song went on to become a favorite around campfires from New Zealand to Canada. The wildly popular "Down Under" remains an unofficial anthem for Australia.

Sinclair died in 1988, but publishing company Larrikin Music — which now holds the copyright for "Kookaburra" — filed a copyright lawsuit in 2009.

Last year, Federal Court Justice Peter Jacobson ruled that the "Down Under" flute riff replicated a substantial part of Sinclair's song. The judge later ordered Men at Work's recording company, EMI Songs Australia, and "Down Under" songwriters Colin Hay and Ron Strykert to pay 5 percent of royalties earned from the song since 2002 and from its future earnings.

The court didn't specify what the 5 percent penalty translates to in dollars. Larrikin wasn't able to seek royalties earned before 2002 because of a statute of limitations.

Lawyers for Men at Work's recording companies maintained the band hadn't copied anything, and vowed to fight the ruling. But Friday's decision from the High Court ends the band's chance to appeal.

"Larrikin welcomes the decision and looks forward to resolving the remaining issues between the parties," Adam Simpson, a lawyer for Larrikin, said in an email.

Mark Bamford, a lawyer for EMI, called the High Court's decision disappointing.

"Down Under" and the album it was on, "Business As Usual," reached No. 1 on the Australian, American and British charts in early 1983. That year, Men at Work won the Grammy Award for Best New Artist.